36:0414(50)AR - - Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1990 FLRAdec AR - - v36 p414
[ v36 p414 ]
The decision of the Authority follows:
36 FLRA No. 50
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Robert G. Williams. A grievance was filed over a performance appraisal received by the grievant. The Arbitrator sustained the grievance and ordered that the grievant's rating for the job element in dispute be changed from "met" to "exceed" and that the grievant's overall performance level be changed to "exceptional."
The Department of the Army (the Agency), in conjunction with the Department of Defense, filed an exception to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.
We conclude that the Agency fails to establish that the award is based on a nonfact. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant in this case is an occupational health nurse. Among her duties is the scheduling of physical examinations for civilian employees who work in hazardous areas. For the performance appraisal rating period from December 1, 1986, to February 29, 1988, the grievant was rated as "met" for the job element entitled "Plans Professional Nursing role within Occupational Health Clinic." The performance standard for this job element states:
Ninety-five percent of employees requiring appointments are scheduled in an appropriate and orderly manner.
Arbitrator's Award at 4.
The grievant filed a grievance disputing the rating. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the grievant contended that she should have received an "exceed" rating because she was 100 percent effective in performing this job function. The Activity contended before the Arbitrator that the grievant was properly rated because she was only 33.4 percent effective in scheduling appointments. According to the Arbitrator, the grievant's supervisor calculated that "2500 civilian employees are exposed to health hazards and only 836 were examined. That means only 33.4% of those needing examinations were actually examined." Id. at 8.
The Arbitrator stated the substantive issue as whether the grievant was properly rated on the disputed job element. He found that the scheduling of employees requiring appointments for medical examinations is simply a clerical process of receiving information, reading employee names on rosters, scheduling these employees for appointments, and sending out notices of appointments. He determined that under the performance standard, as applied, the grievant has no responsibility to schedule appointments for employees exposed to hazards but not listed on the rosters. Therefore, the Arbitrator ruled that "[t]he Grievant is quite correct that she is 100% effective performing this clerical function." Id. at 10.
The Arbitrator rejected the Activity's calculations that resulted in appraising the grievant as only 33.4 percent effective. He found that actual investigations were not made to verify the grievant's supervisor's calculation that 2500 civilian employees were exposed to health hazards. The Arbitrator also found that the supervisor erroneously compared this number of employees "to the number of employees who actually were examined." Id. The Arbitrator indicated that the supervisor's calculation should have used the number of employees who were scheduled for examinations because the grievant has no responsibility for employees meeting their appointments.
The Arbitrator sustained the grievance and ordered that the grievant's rating on the disputed job element be changed to "exceed" and the grievant's overall performance level be changed to "exceptional."
III. Positions of the Parties
The Agency contends that the award is based on a nonfact. The Agency claims that the Arbitrator erroneously stated that the supervisor's rating of the grievant was based on the number of examinations performed rather than the number of employees scheduled for examinations. The Agency argues that this error resulted in the Arbitrator concluding that the grievant was not properly rated because she had no responsibility for employees who were scheduled, but did not meet their appointments. The Agency asserts that 836 is the number of employees who were scheduled for examinations, and that the Arbitrator's erroneous reference to 836 examinations completed, rather than the approximately 2200 employees who, according to the Agency, should have been scheduled is the central fact on which the Arbitrator based his decision. Accordingly, the Agency contends that the award is, therefore, deficient.
The Union concedes that 836 employees were scheduled for examinations rather than actually examined. However, the Union argues that the error had no impact on the Arbitrator's decision. In the Union's view, the Arbitrator based his award on the grievant's testimony that only 836 employees needed to be scheduled and that she scheduled all of them. Consequently, the Union argues that the Arbitrator would have reached the same result regardless of the alleged error.
IV. Analysis and Conclusion
We will find an arbitration award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 177O, 36 FLRA 86 (1990) (Headquarters, XVIII Airborne Corps).
In this case, the Arbitrator sustained the grievance and ordered the grievant's ratings raised because he determined that "[t]he Grievant is quite correct that she is 100% effective performing th[e] clerical function" of scheduling for appointments employees named on rosters submitted to her as exposed to hazards. Arbitrator's Award at 10. Thus, the Arbitrator made a finding that the grievant's duties were solely clerical in nature and did not include the "responsibility for employees exposed to hazards, but not listed on rosters." Id. The Arbitrator also rejected as unverified the Activity's calculation of the number of employees who should have been scheduled. Id. In view of these determinations, we conclude that the Agency fails to demonstrate that the Arbitrator's erroneous reference to the supervisor's reliance on the number of employees "examined" rather than the number scheduled for examinations was a central fact underlying the award such that the Arbitrator would have reached a different result if he had not made the misstatement. See Headquarters, XVIII Airborne Corps (union failed to establish that the matter asserted to be clearly erroneous was a central fact underlying the award).
Accordingly, we will deny th